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Universal Broadband

Often stepping back to gain perspective and to try and see the forest for the trees, can be highly instructive. However, if one steps back to see the big picture of how this FCC is attempting unilaterally to change U.S. Internet policy, the view is surreal.

Increasingly, this FCC is becoming an island.

It is insisting on self-asserting its exceptionalism and its supremacy over the Internet; and

It is ignoring an overwhelming amount of important and contrary input, advice and evidence from Congress, the Courts, DOJ, FTC, past FCCs, industry, and the public.

Simply, this FCC increasingly appears to view itself as exceptional and as the supreme authority on and over the Internet, unconstrained by Congress, the courts, law, economics, markets, or the public.

Consider the avalanche of input and evidence that the FCC is completely ignoring as it proceeded yesterday with its announced plans to have a preliminary vote June 17th to enable the FCC to officially declare broadband a common carrier regulated service for the first time and to mandate its currently illegal proposed open Internet regulations.

1. Ignoring Congress: A majority of members of Congress now oppose the FCC plan in writing (285 of 535) per the National Journal.

Seventy-four House Democrats and thirty-seven Senate Republicans wrote letters (here, here) to the FCC today that essentially told the FCC that their announced plans to deem broadband a common carrier service are over-reaching and out-of-bounds.

In Washington-speak, the letters communicated that the FCC is trying to decide an issue that is "above their paygrade" to decide.

In turn, these letters appear to have prompted the Chairmen of the FCC's House and Senate authorizing committees and subcommittees to announce today that they will hold meetings with key stakeholders to discuss updating the Communications Act legislatively -- another strong message to the FCC that Congress makes communications policy, not unelected commissioners at the FCC.

The clear political message to the FCC here is that they have wrongly put the cart before the horse, and that they must seek a "solid bi-partisan political foundation" for U.S. broadband policy... before they can achieve their desired "solid legal foundation" for the FCC.

There are many valid reasons why industry is highly skeptical of the FCC's many rhetorical assurances that nothing bad will happen from the FCC's planned regulation of broadband for the first time as a Title II common carrier service.

First, in response to the Comcast court decision, the FCC is hastily gambling away the benefits of broadband's proven "solid business foundation," in its longshot bet to win back an unproven "solid legal foundation" for the FCC.

The FCC apparently is ignoring that restoring the FCC's legal "status quo" comes at the expense of the broadband industry's long-time status quo of being unregulated and the consumer's status quo of enjoying the benefits of a market driven Internet "unfettered by Federal and State regulation."

Despite employing all the soothing words the FCC thinks the industry wants to hear, industry is much more interested in actions than words, as actions are what affect their businesses -- not words.

Simply, industry is increasingly watching what the FCC does rather than what it says.

The fact is industry is not reassured that nothing bad will happen to them, because the FCC has announced it plans to apply the most onerous foundational common carrier regulations on the broadband industry for the first time without any defensible justification or legal authority to do so.

Second, the assertion that there has never been an instance of FCC "un-forbearance," is no assurance, because the FCC has never before reversed an entire sector's regulatory status before either.

Kudos to Link Hoewing of Verizon Policy Blog for his excellent post systematically eviscerating New America's Foundation's fact-challenged attempt to argue that the U.S. is falling behind on broadband.

Facts are powerful and that's why net neutrality and Title II supporters like New America Foundation and their FreePress/Public Knowledge allies avoid facts like the plague.

The facts are overwhelmingly on the side that the U.S. is a world broadband leader.

The FCC is vastly understating the systemic risk involved in the FCC's radical "third way" regulatory surgery to the Internet, the communications sector and the economy.

The FCC's proposed "third way" is an elaborate public relations facade that disguises huge problems and fatal conceptual/practical flaws that will become painfully obvious over time.

The FCC's proposal is long on politics and soothing rhetoric, but short on real world practicality or legitimacy; it predictably will ultimately collapse under its own weight, complexity and hubris -- unfortunately leaving exceptional carnage in its wake.

Simply, this proposal is too inherently contradictory and mind-numbingly complex, and too big not to fail.

This analysis will explain why it is a disaster waiting to happen; it's not a matter of if, but when the "third way" will collapse on itself.

I. Why this "third way" is a disaster waiting to happen:

The best way to understand what is going on here is to think of the Internet as a brain and the FCC's "third way" proposal as brain surgery to fundamentally rewire how the Internet brain operates at its most basic level.

A common tactic of net neutrality proponents is to assert their desired outcome repeatedly in hopes that it becomes conventional wisdom. Now the Open Internet Coalition asserts that Title II for broadband would be a "solid legal foundation" for the FCC, while FreePress asserts broadband Title II would provide the FCC a "sounder legal basis" for its broadband agenda.

Fortunately, under the rule-of-law, legal authority simply cannot be asserted or deemed "solid" or "sound" by political acclamation, it ultimately must be proven and affirmed as solid and sound by a full court process (in the absence of Congress passing a new law.)

Surely the FCC understands that the courts ultimately will decide if any legal analysis defending Title II broadband is solid/sound, especially given:

The recent D.C. Circuit Comcast decision (which the FCC is not challenging);

Broadband has never been classified as Title II; and

The FCC is hardly a disinterested observer in trying to determine the boundaries of its own authority.

In the Open Internet reply comments, there are many substantive legal analyses strongly indicating that any FCC decision deeming broadband to be Title II would not be on a solid/sound legal foundation. For just three of the most notable analyses see: